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  1. DOL's Immigration Dereliction - The Continuing Perils of Hilda and Her PERM

    by , 12-11-2010 at 05:16 PM (Angelo Paparelli on Dysfunctional Government)
    When we last left our heroine, Hilda Solis, the Secretary of Labor, she faced uncomfortable and still-unanswered questions about why her agency shrinks from performing its statutory duty to determine labor shortages while playing mountebank to American and foreign workers and U.S. employers.  The source of the bureaucratic trickery, we learned, is the "labor certification" process, a specious test of the labor market now known as PERM. 
    As with any good ruse, PERM began with a promise of performance, an assurance that the new system, in most cases, would be faster than its predecessor.  A new online system with unexplained, behind-the-scenes technical prowess -- the Department of Labor (DOL) assured us -- would process cases quickly and in a more "user-friendly" way:  "[An] electronically filed application not selected for audit will have a computer-generated decision within 45 to 60 days of the date the application was initially filed [69 Fed. Reg. at p.77328, 77358 (December 27, 2004)]." 
    As the Congressional Research Service (CRS) reported, PERM replaced a two-track system (the fast track known as "Reduction in Recruitment," or RIR, and the slo-mo track dubbed "Standard Processing").  RIR, when it sizzled, produced labor certifications in under a month, sometimes in just a week.  Standard Processing took anywhere from two to five years and in some cases, as CRS noted, six years or more.  PERM introduced a three-track system:  (1) a computer-generated decision available in 45 to 60 days, (2) an "Audit" process, and (3) "Supervised Recruitment." 
    While the DOL's latest self-appraisal for FY 2009 grades the "data quality" of the foreign labor certification program as "Very Good," the DOL missed its goal of a six-month process (from the filing of the application to agency decision) by a wide margin: "Only 19 percent of permanent labor certification program applications were processed within six months." 
    Although computer-generated PERM decisions are supposedly issued within the 45-60 day window, the DOL on the "PERM Processing Times" tab of its iCert Portal says wait "three months" before making an inquiry on a delayed case (thereby generating skepticism about the reliability of the published statistics).  Moreover,a processing backlog has developed (of unreported dimension), for which DOL is targeting a "goal for FY 2010 . . . to reduce the backlog by 50%."  Meantime, DOL cases designated for "Audit" take two years and appeals are completed in two-and-a-half years.  Unlucky applications that must undergo Supervised Recruitment take an unknown, but longer period, which the DOL apparently lacks the courage to disclose on its PERM Processing Times tab.
    Worse yet, the DOL's PERM rules are as real or fictional as Potemkin's Village: 
    This DOL-devised recruitment effort is unlike any in the real world of business. The employer must use print ads despite the overwhelming predominance today of internet-based recruiting. The required "prevailing wage" is often inflated because it must be divined in a square-peg/round-hole process from an online DOL database listing fewer than 2,000 occupations, dumbed-down for bureaucratic convenience from the previous Dictionary of Occupational Titles, a compendium of over 40,000 job descriptions. The employer must consider as qualified for the advertised position any job applicants (though lacking the minimum requirements) whom the employer could train in a "reasonable" time. Also up for mandatory consideration are applicants who are clearly over-qualified for the job even though experience has taught that many over-qualified new hires grow bored quickly and soon resign. These are but a few of the deviations from real-world recruiting concocted by the DOL.  [Source: "U.S. Labor Department to Immigration Lawyers: You're All Just Potted Plants," by Angelo A. Paparelli and Ted J. Chiappari. Footnotes omitted.] [For additional blog postings on PERM's failings, see here, here, here, here, here and there.]
    Potemkin Village is an insufficient descriptor for the PERM process.  The "village" allusion seems too low to the ground.  Tower of Babble better describes the hollow edifice that the DOL has erected to camouflage the agency's shirking of its statutory duty to declare labor shortages.  Page upon page of dense regulations were not enough to answer all the questions that PERM has raised. At last count, the DOL has supplemented its regulations with:

    10 sets of equally dense FAQs,
    A 33-chapter pre-PERM Benchbook issued as a second edition in 1992 by the Board of Alien Labor Certification Appeals (BALCA), with occasional supplements (that still contains post-PERM legal concepts that must be mastered),
    Scores of BALCA en banc and federal court decisions spanning the period from 1988 to 2006, and
    Recent decisions, described by my colleagues Cyrus Mehta and William Stock, adding more mud to an already opaque process, identify how humanly imperfect DOL's "letter-perfect" PERM system has proven to be, and require time-consuming case remands from BALCA to the DOL Certifying Officer (or start-from-scratch employer do-overs) that will only enlarge and prolong the backlog. 

    There should be little surprise that the DOL's concoction of the labor certification process has resulted in what armchair psychologists might describe as passive-aggressive behavior.  The DOL's professed mission says nothing about the important national interest in fostering the economic benefits of immigration: 
    [DOL] fosters and promotes the welfare of the job seekers, wage earners, and retirees of the United States by improving their working conditions, advancing their opportunities for profitable employment, protecting their retirement and health care benefits, helping employers find workers, strengthening free collective bargaining, and tracking changes in employment, prices, and other national economic measurements. [Bolding added.]
    Hilda and her predecessor (Elaine Chao) have been wearing the same PERM since 2004, and it's become even less attractive with the passage of time.  Please, Hilda, get a new 'do. Start reporting on the "changes in employment" your agency has been "tracking."  Scrap that hideous PERM and start announcing labor-shortage occupations, as immigration law requires. 
  2. Dec 10 - Seven Articles

    -----------------IMMIGRATION DAILY FROM ILW.COM------------------

    December 10, 2010,1210.shtm


    1. Comment: Seven Articles - Today, Immigration Daily carries

    articles by Jason Dzubow, Cesar Cuauhtemoc Garcia Hernandez,

    Peter Reed Hill, Matthew Kolken, Chris Musillo, Carl Shusterman

    and Greg Siskind.

    2. Article: Crime Provisions Of House's DREAM Act by Cesar

    Cuauhtemoc Garcia Hernandez,1210-Hernandez.shtm

    3. Article: Racial Profiling By 287(g) State Police Officers

    Leads To Temporary Relief From An Absolutely Unassailable

    Deportation Order by Peter Reed Hill,1210-hill.shtm

    4. Article: Hutchison Voting No On DREAM Act Based On False

    Understanding Of The Bill by Greg Siskind,1210-siskind.shtm

    5. Article: POEA: Job Scammers Target Medical Workers by Chris


    6. Article: January 2011 Visa Bulletin: The Great Retrogression

    by Carl Shusterman,1210-shusterman.shtm

    7. Article: Refugee Admissions Numbers for FY 2011 by Matthew


    8. Article: Czech Republic Subjects Asylum Seekers to a "Gay"

    Test by Jason Dzubow,1210-dzubow.shtm

    9. News: USCIS Issues Fact Sheet On Initiative To Combat

    Unauthorized Practice Of Immigration Law,1210-upil.shtm

    10. News: USCIS Publishes Executive Summary of Form I-9

    Stakeholder Engagement,1210-i9.pdf

    11. News: CRS Report On Unauthorized Employment Of Aliens: Basics

    Of Employer Sanctions,1210-crs.pdf

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    13. Headline: Bennett: GOP might pass own version of DREAM Act

    next year

    14. Headline: Somos Republicans seeks to shape Colorado

    immigration debate

    15. Headline: Supreme Court Weighs Case That's Likely Precursor

    to SB1070

    16. Headline: PERM Book 2d. Ed: Your Book for PERM Rule, Analysis

    and Comments, ETA forms, Memos, Roadmaps & Checklists. Get your


    17. Headline: Wavering Maine republican senators on the DREAM

    act. Will they stand up for undocumented youth?

    18. Headline: GOP blocks number of bills for New Yorkers,

    including DREAM Act with filibuster

    19. Headline: Tennessee Considers Arizona-style Immigration Law

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    21. Headline: Employer's Immigration Compliance Desk Reference: A

    great resource for HR managers, immigration counsel and employers

    22. Headline: Recommended: DREAM Act vote moved to next week

    To submit an Article or a news item to Immigration Daily, write

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    1. ReadersWrite: Yesterday's Discussion

    2. ReadersWrite: Today's Discussion

    To submit an Article for consideration, write to



    ComingsNGoings: Immigration Reading The Latino Migration

    Experience in North Carolina: New Roots in the Old North State,

    By Hannah E. Gill, The University of North Carolina Press, 240

    pp. Paperback, ISBN: 080787163X, $18.95

    Readers can share professional announcements (up to 100-words at

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    The first daily in the field of immigration. Forward this to a


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  3. January 2011 Visa Bulletin

    by , 12-10-2010 at 06:00 AM (Chris Musillo on Nurse and Allied Health Immigration)

    by Chris Musillo

    The Department of State has just released the January 2011 Visa Bulletin, which is the fourth Visa Bulletin for US Fiscal Year 2011. This Visa Bulletin had small progress in several classifications.

    January 2011 Visa Bulletin

    All Other Countries



    Read the full Healthcare and Immigration Law Blog at or
  4. Refugee Admissions Numbers for FY 2011

    by , 12-10-2010 at 05:53 AM (Matthew Kolken on Deportation And Removal)
    President Obama has provided for up to 80,000 refugees to be admitted to the United States during Fiscal Year (FY) 2011. This includes persons admitted to the United States during FY 2011 with Federal refugee resettlement assistance under the Amerasian immigrant admissions program.
    Regional allocations are as follows:
    Africa: 15,000
    East Asia: 19,000
    Europe and Central Asia: 2,000
    Latin America/Caribbean: 5,500
    Near East/South Asia: 35,500
    Unallocated Reserve: 3,000
    The 3,000 unallocated refugee numbers will be allocated to regional ceilings as needed.
    The President has also specified that in FY 2011 the following persons may, if otherwise qualified, be considered refugees for the purpose of admission to the United States within their countries of nationality or habitual residence:
    a. Persons in Cuba
    b. Persons in the former Soviet Union
    c. Persons in Iraq
    d. In exceptional circumstances, persons identified by a United States
    Embassy in any location.
    Click here to read the Memorandum that was published in the Federal Register.

    by , 12-10-2010 at 05:29 AM (Greg Siskind on Immigration Law and Policy)
    This is a crying shame. My friend Paul Parsons, an excellent immigration lawyer in Austin, shared this exchange with me last night:

    From: Senator Kay Bailey Hutchison []
    Sent: Thursday, December 09, 2010 5:50 PM
    To: Paul Parsons
    Subject: Constituent Response From Senator Kay Bailey Hutchison
    Dear Friend:    
    Thank you for contacting me regarding S. 3992, the Development, Relief, and Education for Alien Minors (DREAM) Act.  I welcome your thoughts and comments.
         On November 30, 2010, Senator Richard Durbin (D-IL) introduced this bill, which would allow for a 10-year conditional non-immigrant visa that would lead to eventual citizenship. Once they become U.S. citizens, these individuals would by law be able to petition for family members to also gain citizenship.  This would therefore expand citizenship beyond the intended students.  Because of this, I am unable to support the current version of the DREAM Act.
         I appreciate hearing from you, and I hope that you will not hesitate to contact me on any issue that is important to you.
    Kay Bailey Hutchison

    As I noted yesterday, parents are looking at 25+ years before they could enter on green cards and if this is chain migration, it's a pretty brittle chain.
    Here is Paul's response to Senator Hutchison:

    Senator Hutchison -
    I am so disappointed that you intend to vote against the current (already watered down) version of the DREAM Act.   You indicate that they could later petition for some of their relatives to immigrate.    Please read why your objection is misguided.
    These kids were brought here by their parents, and most of them do not even remember life in another country. They have been our neighbors, coworkers, friends, and classmates in our communities for ten, twenty, and in some cases thirty years.
    The DREAM Act would allow them to proudly serve in our country's armed services (which really needs them) or to attend college for at least two years (which would also benefit our country).  They would only be granted a ten YEAR conditional non-immigrant (i.e. temporary status).    After ten long years, they could then apply for
    permanent resident ("green card") status.   Only then could they wait three additional years before beginning the naturalization process (which is by no means automatic).
    What happens if they earn naturalization after waiting for over thirteen long years?   If they have a mother or father who unlawfully entered the U.S, that parent would then be required under our immigration laws to return to his/her home country and face a TEN YEAR BAR for having been unlawfully present in the U.S.
    There is no waiver available for an unlawful presence bar for a parent of a U.S. citizen.  That parent would need to wait outside the U.S. for a full ten full years before applying to lawfully return to the U.S.    I didn't make this up... these ten year bars were passed by our Congress in the Illegal Immigration Reform & Immigrant Responsibility Act of 1996.  The result is that if the DREAM Act student qualifies over thirteen years later for U.S. citizenship, his/her parent would then need to leave the U.S. for another ten years before qualifying to immigrate as the parent of a naturalized citizen.
    What if after over thirteen years a DREAM Act student becomes a U.S. citizen and files a petition for a brother or sister?    Right now if a naturalized U.S. citizen from Mexico had filed a petition for a sibling prior to December 22, 1995, (over 15 YEARS ago), a visa number would only be available today for that brother/sister to apply for a "green card."     If in the U.S. without permission, that applicant would then be required under our restrictive immigration laws to depart from the U.S. for ten more YEARS prior to seeking to any visa or "green card."    The waiting lists for siblings of U.S. citizens are incredibly backlogged, and do not advance one year each year.    Filing today, it would probably take more than thirty YEARS before a sibling's turn would be reached on the waiting list.  
    A U.S. citizen CANNOT petition at all for a grandparent, niece, nephew, uncle, aunt, or cousin under our immigration laws.     
    Please reconsider your position.   You have spoken with many of these courageous DREAM Act students, and you know in your heart that they should be given this opportunity to serve our country.   You know they would become wonderful U.S. citizens and they are already willing to defend our proud country at home and abroad.   
    I respectfully request that you do what's right and vote in favor of the DREAM Act.
    Paul Parsons

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